Testimony of minor victim can be the basis for conviction despite medical evidence not supporting the claim.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23.2.2001 passed by the Special Judge, Raipur in Special Sessions Trial No. 10/2000 convicting the accused / appellant No.1 under S.376 of the Indian Penal Code (for short 'the IPC') & accused / appellant No. 2 under S.376 r/w S.114 of IPC and sentencing each of them to undergo R.I. for 10 years and fine of Rs.5000/-.

2. As per prosecution case, the prosecutrix (PW - 1), aged about 14-15 years, was working as maid - servant in the house of accused / appellants. In the night of 25.12.1999 as the husband of accused / appellant No. 2 i.e. accused / appellant No.1, was on night duty, the accused / appellant No. 2 asked the prosecutrix to stay with her whole night on the pretext that she had already obtained permission of her mother in this regard. In the night at about 12.30 a.m. while she was sleeping, she felt some removing her clothes and then, she woke up and saw that accused / appellant No.1 is removing her Salwaar and her wife (accused / appellant No. 2) had caught, hold of her both the hands. Accused / appellant No.1 was having knife in his hands. Accused / appellant No.1 after removing her clothes committed forcible sexual intercourse with her in the presence of accused / appellant No. 2. Next morning the prosecutrix returned home but did not disclose the incident to anyone as she was threatened by accused / appellants. However, 2-3 days thereafter she disclosed the incident to her neighbourers, who in turn informed her parents and after deliberation, a decision was taken to lodge report against the accused / appellants. Accordingly, FIR (Ext. P1) was lodged on 1.10.2000 based on which offence under S.376 (2) (g) IPC and S.3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 . The prosecutrix was sent for medical examination which was conducted by Dr. (Smt.) A. Bose (PW - 13) on 2.1.2000 vide Ext. P - 12A and she opined that no opinion regarding recent sexual intercourse could be given. She has advised for radiological test of the prosecutrix. Accused / appellant No.1 was also medically examined by Dr. N. S. Gupta (PW - 10) who gave his report of Ext. P - 10 opining him to be fully capable of having sexual intercourse.

3. On completion of investigation, charge sheet was filed against accused / appellant for the offence punishable under S.376(2)(g) IPC & S.3(1)(xii) of the Act, 1989, however, the trial Court has framed the charges under S.376 IPC & S.3(2)(v) of the Act, 1989 against accused / appellant No.1 and under S.376/114 IPC against accused / appellant No. 2.

4. The prosecution in order to bring home the charge levelled against accused / appellants examined 14 witnesses. Statements of accused / appellants were recorded under S.313 of Cr.P.C. in which they abjured their guilt and pleaded innocence & false implication.

5. After hearing counsel for the parties and considering the material available on record, the trial Court by the impugned judgment, while acquitting the accused / appellants of the charge under S.3 (2) (v) of the Act, 1989, convicted & sentenced them as described above.

6. Learned counsel for accused / appellants submits that;
* a highly improbable story has been put forth by the prosecutrix that she was subjected to rape by accused / appellant No.1 in presence of his wife i.e. accused / appellant No. 2.

7. Smt. Agrotin Bai (PW - 3) is the mother of the prosecutrix. She has stated that the prosecutrix was working as maid - servant in the house of accused / appellants. On the date of incident the prosecutrix fell asleep at the house of accused / appellants. After 2-3 days the ladies of locality told her that accused / appellant No.1 had com